Prosecutors in NSA case want to use code in court

'Silent witness rule' allowed sparingly, experts say

March 10, 2011|By Tricia Bishop, The Baltimore Sun

Federal prosecutors in the espionage case against a former National Security Agency employee, who allegedly gave classified information to a Baltimore Sun reporter, want to invoke a little-used rule that allows them to use code words in the courtroom — making portions of a public trial private.

The "silent witness rule," is meant to minimize the disclosure of classified information by allowing only those directly involved in a case — the judge, jury, witnesses, lawyers and defendants — to see it. Any public discussion of the secret details must be done in code.

"They literally have a key, a glossary, that the jury would have that the public would not," said Abbe D. Lowell, a Washington, D.C., defense attorney. He argued against the rule's use in an espionage case that was filed (and later dropped) against two pro-Israel lobbyists.

Judges typically allow the rule to be used only in a very limited way, lawyers said, noting that secret codes quickly become confusing and risk violating the defendant's constitutional rights to a public trial.

"It's literally been used three or four times in the last 30 years," said Jonathan Lamb, a California attorney who published a lengthy article about the rule in 2008 while attending Pepperdine University Law School.

Plans to use the "silent witness rule," first reported Thursday by Politico, were outlined last month in legal documents in the case of Thomas Drake. The former high-ranking NSA employee was indicted under the Espionage Act in April on charges that he illegally retained national defense information, obstructed justice and made false statements to agents for the FBI.

The 10-count indictment states that Drake, who worked at the NSA from 2001 to 2008, gave classified information to an unidentified reporter, but it does not charge him with leaking.

Defense filings identify the journalist as Siobhan Gorman, who now works for The Wall Street Journal.

In 2006 and 2007, while at The Baltimore Sun, Gorman wrote a series of articles exposing management and programmatic problems at the Fort Meade-based agency, sometimes quoting anonymous sources. Drake was a source for many of the articles, his indictment states.

A private hearing has been set in Baltimore for March 31 to discuss the issue and the evidence with Judge Richard D. Bennett of U.S. District Court.

It's unclear how much information the federal government wants to introduce under the silent witness rule in the Drake case. Court filings have referred only to "several … exhibits" and "several classified statements."

Both the prosecution and defense attorneys declined to comment beyond the legal filings Thursday.

Lowell gave an example from his case that would have forced witnesses to utter statements like, "When [the defendant] and I were talking about Country A, we discussed the fact that there was a possibility that Leader 1 might not appreciate the United States' sanction on Topic C."

That's "impossible for a jury to follow, and it will cripple a defendant's rights to really cross-examine and confront the evidence against him," Lowell said.

Free speech advocates point to his case as an example of hypocrisy within the Obama administration, which campaigned on a platform of government transparency, yet has brought more leak prosecutions than the three previous administrations combined. Drake's defense attorneys say he is more whistleblower than traitor.

"The documents at issue in this case concern NSA's waste, fraud, and abuse," Maryland federal public defender James Wyda, who represents Drake, wrote in court filings. "Most importantly, Mr. Drake's activities relating to these documents were intended to reveal the waste, fraud, and abuse that cost the taxpayers money, weakened our civil liberties, and hindered our nation's ability to identify potential threats against our security."

Federal prosecutors have filed a motion asking that Gorman's newspaper articles not be admitted, or acknowledged, during trial, calling them "irrelevant."

Bennett has yet to rule on that motion. He'll consider the "silent witness rule" at the end of the month, though his actual order in the case could also be secret, said Lamb, the California attorney.

"Often, the records are sealed, so we don't actually know whether the court ended up applying the rule," Lamb said. "It's this murky doctrine that's out there that may or may not be used, and when it is used, it's unclear … how."